HORTON AUTOMATICS, PETITIONER V. NATIONAL LABOR RELATIONS BOARD
No. 89-1176
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit
Brief For The National Labor Relations Board In Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 3a-21a) is
unpublished, but the decision is noted at 884 F.2d 574 (Table). The
decision and order of the National Labor Relations Board (Pet. App.
22a-23a), including the decision and recommended order of the
administrative law judge (Pet. App. 24a-71a), is reported at 289
N.L.R.B. No. 57.
JURISDICTION
The judgment of the court of appeals was entered on August 15,
1989. A petition for rehearing was denied on October 2, 1989. Pet.
App. 1a-2a. On December 2, 1989, Justice White extended the time
within which to file a petition for a writ of certiorari to and
including January 25, 1990, and the petition was filed on that date.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether substantial evidence supports the Board's conclusion that
petitioner violated Section 8(a)(1) and (3) of the National Labor
Relations Act, 29 U.S.C. 158(a)(1) and (3), by discharging employees
shortly before a Board-conducted representation election in order to
prevent those employees from voting.
STATEMENT
1. Petitioner, located in Corpus Christi, Texas, designs and
manufactures customized automatic doors and related products. Pet.
App. 4a, 25a. On October 9, 1986, the National Labor Relations Board
notified petitioner that the International Union of Electronics,
Electrical, Technical, Salaried and Machine Workers, AFL-CIO, District
11 (the Union), had filed an election petition seeking to represent
petitioner's hourly paid production and maintenance employees --
approximately 105 employees. On October 30, the Board set a
representation election for December 12, 1986. Id. at 5a, 24a.
On November 3 and 4, however, petitioner notified its bargaining
unit employees of an impending temporary layoff, and explained that
the "layoff would be instituted according to seniority, as provided in
the Company handbook, and * * * that (w)hen work picks up again
employees will be recalled . . . " Pet. App. 6a (internal quotation
marks omitted; brackets in original). Several days later, on
November 7, petitioner told ten production employees that they would
be laid off effective November 10. And on November 26, petitioner
notified all of the laid off employees in writing that they were fired
as of that date. Id. at 6a, 27a.
2. The Board conducted the representation election, as scheduled,
on December 12, 1986. Nine of the laid off employees cast ballots;
petitioner challenged those ballots on the ground that the employees
had been fired and had no reasonable expectation of being rehired.
Pet. App. 6a, 27a-28a. /1/
On January 12, 1987, the Union filed with the Board unfair labor
charges against petitioner alleging that the firm had engaged in
specific violations of Section 8(a)(1) of the National Labor Relations
Act, 29 U.S.C. 158(a)(1), beginning in October 1986 and continuing
beyond the date of the election. The Union further claimed that
petitioner's November 10 "temporary" layoff and November 26
"permanent" layoff violated Section 8(a)(3) and (1) of the Act, 29
U.S.C. 158 (a)(3) and (1). Pet. App. 7a, 24a-25a.
On February 20, 1987, the Board's General Counsel issued an unfair
labor practice complaint based on the Union's charges. The complaint
was tried before an Administrative Law Judge in March and May 1987.
Pet. App. 7a, 24a-25a.
3. Adopting the findings and conclusions of the ALJ, the Board
found that petitioner had violated Section 8(a)(1) of the Act by many
coercive acts, including threatening employees with the layoff of
union supporters and telling employees that they would not be recalled
because of their union activities. Pet. App. 23a, 28a-32a, 41a, 45a.
/2/ The Board found that petitioner had further violated Section
8(a)(1) by the following actions: changing plant rules and
restricting employee mobility to prevent employees from discussing
unionization, Pet. App. 32a-36a; forbidding solicitation of union
support on non-work time, id. at 43a-45a; deliberately creating a
confrontation with Union Representative Martinez in order to reduce
employee support for the Union, id. at 36a-41a; interrogating
employees about their union preferences and activities, id. at
41a-43a, 48a-49a; threatening employees that wage increases would end
if the Union were certified, id. at 47a-48a; and predicting that the
firm could take steps that "would do away with the Union," id. at 46a.
The Board determined that petitioner had violated Section 8(a)(1)
and (3) of the Act by laying off and then firing ten bargaining unit
employees during the election campaign because of their union
activities. Pet. App. 49a-64a. The Board found that petitioner knew
about the laid off employees' support for the Union. Id. at 59a. /3/
The Board also found that the previously documented violations of
Section 8(a)(1), which petitioner's managers and supervisors committed
both before and after the layoff, revealed the firm's strong
anti-union animus. The Board thus concluded that the "timing of the
layoff, which took place approximately four weeks before the
Board-conducted election, coupled with the stated reasons for the
layoff(,) convincingly demonstrate(d) (that petitioner's) motivation
for having the layoff was to preclude these 10 known union supporters
from voting in the * * * election." Pet. App. 59a; see note 2, supra.
The Board rejected petitioner's contention that the temporary
layoffs "were brought about by economic necessity." Pet. App. 50a;
see id. at 60a. /4/ And the Board concluded that petitioner's
asserted justification for making the November 10 layoffs permanent
was pretextual. Id. at 64a. /5/ As the Board explained, the evidence
showed that petitioner's decision and November 26 announcement "that
the layoffs were permanent came about as a result of (petitioner's)
desire to preclude its laid off employees from voting in the 12
December Board-conducted election." Id. at 57a.
4. The court of appeals enforced the Board's order in an
unpublished decision. Pet. App. 3a-21a. The court did not resolve
whether petitioner's November 10 layoff was unlawfully motivated,
since the court concluded that substantial evidence supported the
Board's finding that petitioner had permanently laid off the employees
on November 26 for discriminatory reasons, in violation of Section
8(a)(1) and (3) of the Act. Pet. App. 7a-8a, 12a. And in reaching
that conclusion, the court determined that it was not unreasonable for
the Board "to draw an inference of anti-union animus from the timing
of the November 26 notice itself." Id. at 11a. The court noted that
the record showed that petitioner's supervisors had seen some of the
laid off employees distributing union leaflets, "that the layoff
became an issue in the election(,) that (petitioner) feared that the
outcome of the election would be close," ibid., and that petitioner
"had never made permanent layoffs before November 26, 1986," ibid.
/6/
ARGUMENT
1. Petitioner contends (Pet. 6-14) that in enforcing the Board's
order, the court of appeals misapplied the "substantial evidence"
standard of review. In Universal Camera Corp. v. NLRB, 340 U.S. 474
(1951), this Court stated that in evaluating the substantiality of
evidence supporting the Board's findings, a reviewing court must
"canvass() 'the whole record'" and "take into account whatever in the
record fairly detracts from (the) weight (of the supporting
evidence)," id. at 488. In performing that function, "a court may
(not) displace the Board's choice between two fairly conflicting
views, even though the court would justifiably have made a different
choice had the matter been before it de novo." Ibid. And the
reviewing court must give particular weight to the credibility
determinations of an "examiner who has observed the witnesses and
lived with the case." Id. at 496.
Contrary to petitioner's sweeping submission, the court of appeals
here properly applied that governing standard of review. See, e.g.,
Pet. App. 7a. At bottom, petitioner argues (Pet. 7-11) that the court
of appeals erred in considering whether substantial evidence supported
the Board's findings concerning the November 26 permanent layoff,
apart from whether such evidence supported findings regarding the
November 10 layoff. But even assuming petitioner had a valid economic
reason for temporarily laying off the ten employees, the evidence
amply supported the Board's finding that petitioner converted that
action into a permanent layoff for an impermissible reason -- to
preclude the employees from voting in what petitioner expected to be a
close representation election. And those two propositions are by no
means inconsistent, particularly where, as here, "(i)t is
uncontroverted that (petitioner) had never made permanent layoffs
before November 26, 1986," Pet. App. 11a. /7/
Petitioner also suggests (Pet. 13-14) that further review is
warranted because the circuits have used "conflicting standards" in
applying Universal Camera. As this Court observed in Universal
Camera, 340 U.S. at 489, the "precise way in which courts interfere
with agency findings cannot be imprisoned within any form of words * *
* . There are no talismanic words that can avoid the process of
judgment." For that reason alone, the different verbal formulations
adopted by various courts of appeals to describe that "process of
judgment" do not reflect any substantive disagreement (or disarray,
for that matter) requiring intervention by this Court.
2. Petitioner further contends (Pet. 14-16) that the court of
appeals failed to apply the mixed-motive test announced by the Board
in Wright Line, /8/ and approved by this Court in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983). Under the
Wright Line analysis, where evidence before the Board shows that an
employer's opposition to union activity was a substantial or
motivating factor in his decision to take adverse action against an
employee, the employer's action will be an unfair practice unless the
employer establishes that he would have taken the action even if the
employee had not engaged in protected union activity. NLRB v.
Transportation Management Corp., 462 U.S. at 401-403. But in order
for the Wright Line analysis to apply in a given case, the employer
must advance -- and the record must support -- a legitimate,
non-pretextual reason for adverse action. Where the Board finds that
the employer's proffered reason is a pretext to disguise unlawful
discrimination, the Wright Line analysis is unnecessary:
(A) finding of pretext necessarily means that the reasons
advanced by the employer either did not exist or were not in
fact relied upon, thereby leaving intact the inference of
wrongful motive established by the General Counsel.
Limestone Apparel Corp., 255 N.L.R.B. 722, 722 (1981); see also NLRB
v. Transportation Management Corp., 462 U.S. at 400 n.5.
Here, the Board found, and the court of appeals agreed, that
petitioner's proffered explanation for the November 26 firings was not
credible. Since petitioner, on this record, did not show any
legitimate motive for its action, petitioner necessarily failed to
satisfy its burden of showing that the discharges would have occurred
even without the demonstrated anti-union motivation. Thus the
decision below is wholly consistent with the Wright Line analysis.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
JERRY M. HUNTER
General Counsel
D. RANDALL FRYE
Associate General Counsel
ROBERT E. ALLEN
Associate General Counsel
NORTON J. COME
Deputy Associate General Counsel
LINDA SHER
Assistant General Counsel
CARMEL P. EBB
Attorney National Labor Relations Board
MARCH 1990
/1/ Apart from the nine challenged ballots, petitioner's employees
cast 43 ballots in favor of union representation and 43 ballots in
opposition. Horton Automatics, 286 N.L.R.B. No. 134 (1988). As the
court of appeals noted, "(t)he outcome of the election is still
unresolved since the challenged ballots will determine the outcome."
Pet. App. 6a n.2. The Board has decided not to count the challenged
ballots until the final disposition of the instant case. See ibid.
/2/ The Board found that in late October or early November 1986,
Supervisor Elizalde told an employee that "a layoff (was) coming
around because of union activities." Pet. App. 28a. The Board did not
credit Elizalde's different version of the conversation. As the ALJ
explained, "Elizalde was not an impressive witness. His recollection
on cross-examination was selective and poor." Id. at 29a. The Board
further credited another employee's testimony that Elizalde said that
he doubted that petitioner would recall the laid off employees, and
that the reason was "union." Id. at 30a. Again, the Board did not
credit Elizalde's contrary testimony because his "demeanor and the
full record evidence convince(d) (the Board that) he was not fully
candid in his recall of this conversation." Id. at 31a.
The Board also found that in early November 1986, Superintendent
Castillo "clearly conveyed to (employees) the message that the layoff
was tied to their union activities." Pet. App. 32a.
/3/ The Board specifically found that before the layoff, those
employees had distributed union leaflets at the plant and had worn or
displayed union insignia. Pet. App. 59a. And the Board found that
petitioner "collectively, through President Hewitt, Plant Manager
Carrier, Superintendent Castillo, and Supervisor Elizadle (sic) knew
of their union activities." Ibid.
/4/ The Board found that although petitioner had not met its
projected sales in 1986, the firm's actual sales exceeded the previous
year's figures. Despite that increase, petitioner had not expanded
its work force. Pet. App. 60a-61a. The Board also determined that
petitioner's hiring of replacement workers until shortly before the
layoff undercut the firm's alleged concern with overstaffing. And the
Board noted that petitioner's use of overtime had nearly doubled after
the November 10 layoff, which "appears to explain how (petitioner)
continues its normal production with 10 (fewer) employees." Id. at 64a
n.55.
/5/ Petitioner contended that it sent the notification letters "not
only so the employees would know they were permanently laid off but
also to inform them they needed to obtain health insurance elsewhere
and so they and particularly F. Gonzalez (a handicapped employee)
would seek employment elsewhere." Pet. App. 56a. The Board rejected
that explanation, noting, among other things, that petitioner had
already told the employees that the layoff and recall would be
governed by the firm's handbook and that their insurance coverage
would lapse after 30 days. Id. at 57a.
/6/ After reviewing the record and deferring to the Board's
credibility determinations, the court of appeals enforced the Board's
order with respect to petitioner's various violations of Section
8(a)(1) of the Act. Pet. App. 12a-21a. The court did note that it
might have resolved certain credibility determinations differently if
it had authority to review the case de novo. See, e.g., id. at 13a.
/7/ Petitioner also contends (Pet. 8-9) that, having rejected
certain testimony relied upon by the Board, the court of appeals
should have rejected other testimony of the same witnesses. But the
courts of appeals have long agreed that a witness's testimony "need
not (be) treat(ed) * * * as indivisible, for acceptance or rejection
only as a unit." See, e.g., NLRB v. Downslope Indus., Inc., 676 F.2d
1114, 1116 (6th Cir. 1982); Pioneer Drilling Co. v. NLRB, 391 F.2d
961, 964 n.3 (10th Cir. 1968); NLRB v. United Bhd. of Carpenters, 230
F.2d 256, 259 (1st Cir. 1956).
/8/ Wright Line, A Division of Wright Line, Inc., 251 N.L.R.B. 1083
(1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S.
989 (1982).